Can the K.S.M. Trial Be Saved?

It’s been another strange stretch at Guantánamo Bay, with a legal farce playing out in the courtroom where Khalid Sheikh Mohammed, the admitted planner of the 9/11 attacks, and his alleged co-conspirators, are being tried by a military commission—or will be, someday, maybe. The military judge, Colonel James Pohl, has just suspended the latest round of pretrial hearings for thirty days, so that he can figure out whether a secret F.B.I. investigation has created a conflict of interest for the defense. About a week ago, a classification expert for one of the defendants, Ramzi bin al-Shibh, told lawyers on the team that the F.B.I. had come to his home and questioned him about them—and then asked him to sign a non-disclosure agreement. The defense lawyers complained to the judge, in a late-night emergency filing, that this amounted to the government planting an informer in their midst. And, indeed, the situation was serious enough for the judge to stop everything and hold a hearing, even though the prosecution said that it didn’t know anything about an F.B.I. investigation. On Monday, a special trial counsel confirmed that there was, in fact, an F.B.I. investigation—meaning that there was also a mess for the judge to sort out.

Khalid Sheikh Mohammed was captured a decade ago, and still hasn’t been convicted of anything. Instead, in the past few days, we’ve had the judge order every lawyer or expert who’s ever been involved on any of the defense teams to speak up if he or she has been questioned by the F.B.I. or another agency, “irrespective of any non-disclosure agreements which may have been signed.”

What is the F.B.I. investigating? The special trial counsel would say only that it had something to do with the case, and that it did not, as the defense has assumed, have to do with some of Khalid Sheikh Mohammed’s writing published by the Huffington Post. One might ask why it didn’t occur to the F.B.I. that it might be muddling a trial whose integrity should be of great importance. Then again, maybe the proceedings at Guantánamo somehow failed to register as a trial—the respectable kind—on whatever legal radar those F.B.I. agents have. Admittedly, it doesn’t much look like one. The Obama Administration decided not to use the civilian courts, going instead for one in which nobody even seems to know who’s in charge, and where mystery buttons and lights can make everything stop. (I wrote today, over at Daily Comment, about secret law, post-9/11; this might be in the category of pretend law.)

Can the United States avoid being humiliated when Khalid Sheikh Mohammed goes on trial? There have been worries that the proceedings will embarrass us with revelations about torture. But, as Americans, we might want to hear what our government is doing—secret shames are worse. And some worry that he will make long speeches, propagandizing, though one should have enough faith in our philosophical advantage over Al Qaeda to assume that only he will look ridiculous. The real concern, it appears, should be that we look like legal bunglers, kids who don’t even know how to put on a show. How can this situation be saved—can someone come up with a serious answer to that question, a route out of the ridiculousness? Are we going to assemble the world’s press corps for the trial of the century, and then have them wait around touring Cuba the next time the hearings fall apart? Perhaps we don’t need to answer that for a while; a rough date for the trial hasn’t even been set.

Amy Davidson is a New Yorker staff writer. She is a regular Comment contributor for the magazine and writes a Web column, in which she covers war, sports, and everything in between.